This page contains comments submitted as a part of a rulemaking on exemptions
from prohibition on circumvention of technological measures that control access
to copyrighted works (read more details). The
following comments were submitted in the first round of comments between Nov.
19 and Dec. 18, 2002.

Note: In order to view the PDF files below, your computer must
be equipped with the free Adobe Acrobat
Reader 6 program or other software capable of reading PDF version 1.4 files.

1

Mark Wilkins

Class

Audiovisual
works presented in digital format, when used by a
participant in the original creation of such work in the
assembly of a brief collection of excerpts for purposes
of soliciting business or employment, commonly known as
a "portfolio" or "demo reel."

Summary

The
DMCA's prohibition on circumventing access to the raw digital
image content stored in protected digital distribution media
such as DVDs unduly inhibits workers engaged in the production
of audiovisual works such as motion pictures from being
able to engage in the practice, generally understood to
be "fair use" under the copyright act, of compiling
portfolios or demo reels, which are presentations of one's
prior work used to secure employment.

Since alternative nonprotected media such as VHS are
either of insufficient quality for the application or
are not available, this use of this class of work should
qualify for an exemption from the DMCA's requirements
prohibiting the circumvention of access technologies.

The inability to create noninfringing
copies of musical works can lead to the loss of works that
are not commercially successful. Permanent barriers to creating
noninfringing copies goes far beyond the constitutional copyright
protection that protects works "by securing for limited
times".

Any digital-format
work, including but not limited to Compact Discs (CDs) and
Digital Versatile Discs (DVDs) which contain material not
available in a comparable analog format at a price no more
than ten percent (10%) higher than the cost of the digital
work.

Summary

In
its prior rulemaking, the Register of Copyrights indicated
that concerns of inability to make use of these works were
invalid, because the works were also available in analog
format. A large number of digital media works are released
with extra material not available in analog format. Therefore,
following the Register's own logic, it is reasonable to
create an exemption to allow users to access these works
if the use is legitimate and lawful.

Music of all
types used for personal medium transfer or backup archival
methods

Summary

Music
that is used by natural-born persons in the United States
and other nations which we have treaties with should be
exempted for all personal uses involving medium transfer
or backup archival methods, as our Constitution and our
Nation do not permit Congress or any Administration from
removing those liberties granted naturally to us. This
specifically includes transferring any music bought, licensed,
or rented being transferred from any specific format to
any other, so long as such transfer is limited to non-commercial
uses and is not intended to be resold except as constitutionally
guaranteed irony, parody, or collage (30 seconds or less)
uses.

All classes
of copyrighted works should be exempted under certain conditions.

Summary

The
DMCA does not take into account the need for legitimate,
non-copyright holders to circumvent "a technological
measure that effectively controls access to a work protected
under this title" by stating that "[t]he trafficking
in, inter alia, any device or service that allowed others
to circumvent such a technological protection measure may,
however, be actionable under section 1201(b)." The
problem is: 1) Criminals are implementing copyrighted technology
that controls access to works which may be considered protected
under the DMCA (i.e., the tool used is copyrighted and the
work protected is copyrighted), 2) Government agencies often
lack the ability to create tools capable of circumventing
copyrighted works protected by copyrighted technological
measures; therefore relying on the private sector to make
tools available. The DMCA does not make exceptions when
1) the copyrighted tool used to protect access was used
for criminal activity, 2) the protected work involves criminal
activity, or 3) the trafficking of circumventing tools when
designed for use in situations where there are exemptions
such as the need to access protected works in the course
of an investigation.

We
need to ensure an individual's access to works they create
or purchase.

First: Current encription and digital watermarking prohibit
an individual from making as many digital copies of their
own created muscal works as they want. I record my music
on Minidisk. I digitally copy it to a CD Recorder. I then
try to make dupes of that master CD in the CD recorder
but this is impossible. I am disallowed access to my own
music through the implimentation of SCMS "bits"
that mark one an original, another a copy and prohibit
any copies of copies. If I lose my original, I cannot
access my music for any digital duplication because of
the hardware restrictions that already exist in the market.

Secondly, when I purchase musical works or motiopn pictures
(for example), I fully expect to be able to access that
music on any and all means available to me. However, current
CD "protection" schemes actually inhibit the
playback of said CDs on my Macintosh. The simply do not
work, and caused the computer to be unable to eject the
CD. Another example: I purchase a DVD for home enjoyment,
but do not have a DVD for the children to watch in the
car. I would like to make a VHS copy of the DVD but copy
protection means I, and my children, cannot access the
movie in the car. I am forced to purchase the motion picture
twice. Another consideration: For convenience I prefer
a single CD of 150 MP3 songs (that I legally own) to having
to bring along 10-15 different CD's with 10-15 songs each
and change them every hour in the car. I don't want to
deal with CD cases, swapping disks and all that while
on the road. It is safer and more convenient for me to
access my music on one MP3 CD I create of my own music.
I paid for the right to access my media, I should be allowed
to access it where, and how, I see fit.

Because some people have different
physical requirements for reading, it is necessary for such
disabled persons to gain access to the contents of ebooks
we have purchased so we can actually read them. I am legally
blind and have special requirements for reading not met by
comercial ebook software.

1.
Motion pictures stored on DVDs are usually encrypted.
2. Encryption of motion picture on a DVD prevents fair
uses of the motion picture.
3. Fair uses of a copyrighted work are legal, so circumvention
of encrpytion for these purposes should be exempt.

Current technologies to prevent misuse also can prevent
"Fair Use" applications, Eg: many CD's with
copy protection cannot be played on the cd player in my
computer, which is where I, and many other professional
programmers, do the majority of our listening. The use
of "Cracking" programs to enable fair use should
not be subject to criminal penalties. While "Trading"
(Stealing) or sale of physical reproductions of such works
should clearly be illegal, the current regulations, which
consist of a blanket ban against the breaking of digital
copy protection methods inhibit fair use of products legally
purchased in the following ways.

1) Copy protection methods currently in force can prevent
the legal playing of protected works in most computer's
sound systems, and occasionally in Auto CD players, and
even more rarely in some makes and models of dedicated
Home CD players.

2) Current regulations make illegal any methods of compressing
such copy protected files for otherwise legal listening
on commercially available "MP3 Players" (much
like a "walkman", or Automobile sound system
MP3 decks.) Such compression allows the user to carry
with them a much larger number of songs than would be
practicable in the native cd format.

3) Current rules are the logical equivalent of executing
all of the residents of a town to make sure you get the
one serial killer among them. This alone classifies the
current regulations as "Not in the public interest"

4) Copying digital media for legal, "Fair Use",
purposes is not an exercise in "Interstate Commerce"
and is therefore not subject to Federal Regulation.

I would add, as an aside, that I am both a musician and
a professional software publisher. As such I most certainly
do not approve of the pirating of Copyrighted materials.
None the less, preserving the legal concept of "Fair
Use" is beneficial not only to the end users of such
products, but to the producers of those products as well.

written, human readable documents
explaining the means of operation of and potential defects
in a technical protection measure.

Summary

any
written expression, even that which documents ways of
violating laws, is protected speech under the first amendment.
The DCMA can be interpreted as making the publishing of
information related to security flaws that if exploited
would lead to circumventing some protection mechanism
illegal. This is not consistant with the first amendment,
nor is it consistant with common sense - we need the flaws
to be identified so they can be fixed, particularly when
they relate to the protection of computer systems from
malicious exploitation. Therefore, it is important to
exempt and exclude these text documents. An executable
computer program whose purpose is the circumvention of
a protection measure would not be included in the class,
but a description of how such a program could be written
would be included.

Electronic books
(literary works, possibly also containing pictorial works
in the form of illustrations, in electronic form)

Summary

The access control measures used for secure electronic
books by nature prevent a user from upgrading his hardware
without losing access to the books. They also preclude
use of the secured electronic books by certain types of
researchers, and by locking out accessibility software
also prevent the blind and visually impaired from making
use of the secured electronic books.

1.
Descriptive Name Class : Works in the Public Domain that
have been distributed using access controls.
2. Descriptive Name Class : Information collected by "Spyware"
software that is encrypted or "Spyware" software
whose operation uses encryption to hide its operation

Summary

1.Works
in the Public Domain may not be copyrighted. Circumvention
of access controls for Public Domain works can not be
a violation of 17 U.S.C. 1201(a)(1)(C) since that section
refers only to copyrighted works.

2.Commercially distributed software that is distributed
with the intention of gathering information on users surreptitiously
without their knowledge or consent is called "Spyware"
by computer security specialists. While obstensively the
Spyware program is distributed to perform one function,
it is actually a Trojan Horse collecting information about
the user of the software without their knowledge and relaying
it back to the distributer of the software. It uses the
same technology and means of distribution as computer
viruses. The only difference is that Spyware is less malicious
than many computer viruses which may collect passwords
and credit card numbers to commit fraud. Computer viruses
may use encryption to change their appearance and hide
their true operations. Spyware also uses encryption to
hide the information collected, transmitted, or to prevent
reverse engineering of the code to determine just what
it truly is doing. Since Spyware is a computer program
it is also a copyrighted work that may also claim to be
using encryption to control access to its workings or
as a part of a copy protection "technology."
The prohibition on circumvention affects the ability of
computer security specialists to determine what is or
is not Spyware and what information has been compromised.

1. Audiovisual
works on DVD protected by the Content Scrambling System (CSS).
2. Software and games that are played on video game machines.

Summary

1. Users are heavily restricted
from playing foreign DVDs, playing DVDs on Linux, or using
features such as skipping commercials that are locked out
by licensed DVD players, without circumvention.
2. Users are restricted from running unauthorized software
and playing import games without being able to circumvent.

Tools which
existed before and happen to be able to circumvent newer products
access controls.

Summary

Several companies are
using well-known encoding schemes, rather than strong encryption,
as access control. Tools that can circumvent these access
controls already exist. Those tools should be exempt from
the anti-circumvention clauses, as should any updates to
those tools.

- There are many foreign forms of entertainment such as
Anime (from Japan) which has gained popularity among audiences
in the United States

- Many of these works are slow to be introduced into
the United States, and when they are have been subjected
to various forms of censorship, editing, changing the
content of what is contained in them. This has followed
at times controversy which is brought forth by the Christian
right or "moral majority"

- Though it would be legal to BUY a DVD from Japan, due
to region coding, this could not be played on a region
1 DVD bought in the United States. (Japan is in region
3.)

- The US Supreme Court has been absolutely explicit concerning
the seperation of church and state, and in their defence
of such clauses of the First Amendment to the United States
Constitution such as the non-establishment clause and
freedom of speech and the press.

- People should be free to exercise their First Amendment
rights to view forms of entertainment they might enjoy.
The enforcement of copyright law should not have the effect
of supporting censorship and the imposition of the will
of a certain segment of highly political individuals (the
"Christian Right" for instance) upon the rest
of the populace.

- Given that the editing has taken place, people who
want access to the original shows, minus all the editing
(including that which could tend to "Christianize"
a show from a foreign culture such as Japan), people should
be able to see the original work if desired.

source code
- human readable description and/or defintion of the behavior
of a computer program that can be transformed into a format
executable by computer hardware but effectively unreadable
by humans.

Non infringing use prevented - evaluation of the security
of software packages. In particular, security audits assessing
the likelihood that unauthorized users can utilize installed
software to illegally hijack the resources of the computer
system in which this software is installed.

How this circumvents the encryption - the testing process
unencrypts portions of the binary translation by describing
any potentially dangerous and/or subversive behaviors
the software possesses that may pose a threat to system
integrity.

Why this is otherwise protected - "Clean room"
implementations of software (precise descriptions of software
behavior which exactly duplicate the behavior of another
system created without access to the original software's
unencrypted content) are protected under fair use (IBM
lawsuit to prevent i386 clones). In addition, the quoting
of portions of content for reporting purposes is explicitly
permitted under fair use doctrine.

Harm 1- Encourages non-US security researchers to explicitly
prevent US citizens from accessing their work. (See RedHat
advisory board for RHLinux for details of one such example
(1)) This is done to protect researchers in countries
that do not accept the validity of the DMCA within their
borders from potential lawsuits in the US. This places
US system administrators at a disadvantage against potential
attackers since they are denied access to descriptions
of how attackers can hijack their systems resources (preventing
the deployment of countermeasures) while criminal attackers
have full access.

Harm 2- Discourages prompt reporting of system flaws
to system administrators. Since those reporting flaws
can experience (and have been threatened with) legal retaliation
by software manufacturers, there is a significant disincentive
to provide the information necessary to enact effective
countermeasures. These information disclosures are typically
unpaid. When a significant potential financial burden
is attached, the rewards of providing the needed information
are dwarfed by potential liabilities.

Harm 3- Encourages complacency by software providers.
Prior the DMCA's circumvention provision, companies with
defective software were compelled by bad publicity to
release well-tested patches quickly. Evidence provided
below indicates that at least some companies are abusing
the DMCA’s anti-circumvention clause to prevent
their customers from discovering their vulnerability to
criminals by threatening legal action against those individuals
who publish this information(2).

Harm 4- Recent reports from the Bush administration have
reaffirmed the role rank and file system administrators
have in securing the nations internet infrastructure against
assault by terrorist organizations and rouge states. The
DMCA's circumvention clause in relation to source code
provides a significant hindrance to protection of the
internet from hostile attack. System administrators are
not only highly decentralized, but are scattered throughout
a wide range of private and public enterprises. Effectively
disseminating the information necessary to predict and
prevent large scale assaults on the infrastructure are
only possible if the information needed to prevent these
assaults is protected against legal retaliation. Evidence
that this threat is real is provided by the recent large-scale
assaults against the DNS root servers in the past month
(3).

Specific examples cited in this work-

(1)Descriptions of vulnerabilities discovered in software
packages utilized in the Red Hat Linux operating system
are published by foreign researchers in a fashion that
bars US citizens from accessing this information. The
researchers explicitly state that their decision to ban
access by US citizens was motivated by fears of legal
retaliation in the US under the DMCA’s anti-circumvention
clause.

(2)On July 19, 2002 HP sends legal notice to Adriel T.
Desautels of Secure Network Operations, Inc. that they
intend to prosecute under the DMCA’s circumvention
clause unless they make every possible effort to retract
publication of the security flaws in HP’s True64
Unix operating System – full text of this letter
provided below.

(3)Sophisticated attack against dns root servers - Recently,
a massive denial of service attack was launched against
the 'root dns' servers - those computers that provide
the means to translate word based internet addresses into
raw IP addresses. The attack was both of exceptionally
sophisticated and conducted in a manner suggesting of
a test. The system was attacked for a brief time, then
the attack was stopped by the attacker before the underlying
structure of the internet could be significantly degraded.
Both the unusually high degree of sophistication in the
attack and the exploratory nature of the attack lend credibility
to the threat of a future sophisitcated large scale assault
against critical internet resources on which the economy
is now dependant.

Class
1: Literary works restricted by access controls that tether
the work to a specific device or platform, thereby preventing
a lawful possessor from using the work on an unsupported
system in a non-infringing way.
Example: E-books

CLASS 2: Sound recordings restricted by access controls
that tether the recording to a specific device or platform,
thereby preventing a lawful possessor from using the work
on an unsupported system in a non-infringing way.
Example: Access-Restricted CDs

CLASS 3: Motion pictures and other audiovisual works
restricted by access controls that tether the work to
a specific device or platform, thereby preventing a lawful
possessor from using the work on an unsupported system
in a non-infringing way.
Example: DVDs

CLASS 4: Literary works restricted by access controls
that limit lawful access to and post-sale uses of the
work, where circumvention allows a lawful possessor to
use the work in a non-infringing way.
Example: E-books

CLASS 5: Sound recordings restricted by access controls
that limit lawful access to and post-sale uses of the
work, where circumvention of the technology allows a lawful
possessor to use the work in a non-infringing way.
Example: Copy-restricted CDs

CLASS 6: Motion pictures and other audiovisual works
restricted by access controls that limit access to and
post-sale uses of the work, where circumvention of the
technology allows a lawful possessor to use the work in
a non-infringing way.
Example: DVDs

Summary

Class
1: Literary works restricted by access controls that tether
the work to a specific device or platform, thereby preventing
a lawful possessor from using the work on an unsupported
system in a non-infringing way.
Example: E-books

Summary:
When a publisher distributes an E-book tethered to a specific
device or platform, the DMCA prevents purchasers from
reading content they lawfully acquire on the devices of
their choosing. An exemption for this class of works would
allow purchasers of E-books to lawfully circumvent access
controls for the lawful purpose of reading a literary
work on multiple devices or platforms.

Facts:
Literary works distributed in electronic format, often
called E-books, are increasingly restricted by technological
access controls that prevent owners from reading the book
on the system they choose. For example, some Adobe E-books
employ access control measures that prevent users from
reading an E-book on any machine other than the one it
was first downloaded onto. This is a problem for E-book
purchasers who upgrade their computers or switch operating
systems and are unable to read the E-books they had lawfully
purchased on their new machine. It is also a problem for
E-book purchasers who choose to read their E-books on
a different computer or device, such as a laptop or PDA,
from the one onto which it was originally downloaded.

Argument:
There is a legitimate need for purchasers to be able to
move their E-books from a desktop to a laptop, from an
IBM to a Macintosh, or from a Tablet to a PDA. Consumers
have long exercised the option to read books on planes
and on trains and in their backyard and in bed. Copyright
law has never been construed to allow authors to prevent
a reader's freedom to read a lawfully purchased literary
work where and how they choose. No less opportunity should
be available because the reader purchases an electronic
book. E-books that employ technological restrictions that
deny someone in lawful possession from accessing it where
and how and on which device they choose allow content
creators much greater ability to control reader's choices
than they have ever had under copyright law.

Furthermore, tethering literary works to a specific device
limits an E-book owner's ability to exercise the full
bundle of property rights long associated with ownership
of a book. For example, the First Sale doctrine allows
a reader to resell a book after she has finished it. Access
controls that restrict the platforms on which an E-book
can be read interfere with that right. If an E-book is
tethered to a platform that becomes obsolete, the owner
can no longer exercise her option to resell or otherwise
dispose of the Ebook according to her choosing. Since
the First Sale Privilege is a limitation on a copyright
holder's ability to control distribution of that work,
circumvention should be permitted on technological control
measures that restrict redistribution of an E-book by
tethering it to a particular device or system.

Circumvention of access control measures that tether
E-books to specific devices or platforms is necessary
to allow purchasers to read and resell literary works
with the same ease and versatility that they have historically
exercised. By preventing circumvention of this class of
access controls, the DMCA both denies purchasers of literary
works the rights they retained under copyright's historic
balance and endows creators with new rights to restrict
how literary works are used in a manner never before contemplated
or permitted. We urge the Librarian to recommend an exemption
to the DMCA's general ban on circumvention of access control
measures to permit owners to lawfully circumvent access
control measures that tether literary works to specific
platforms or devices.

-------------------

CLASS 2: Sound recordings restricted by access controls
that tether the recording to a specific device or platform,
thereby preventing a lawful possessor from using the work
on an unsupported system in a non-infringing way.
Example: Access-Restricted CDs

Summary:
The DMCA prevents CD purchasers from listening to recordings
they lawfully acquire on the devices of their choosing,
when copyright holders distribute CDs that are tied to
a specific device or platform. An exemption for this class
of works would allow purchasers of CDs to lawfully circumvent
access controls for the lawful purpose of listening to
their recordings on multiple devices or platforms.

Facts:
Compact Discs (CDs), music downloaded from the Internet,
and other types of sound recordings are increasingly restricted
by technological access controls that prevent owners from
listening to their own recordings on the system they choose.
For example, some distributors tether sound recordings
to CD players, preventing lawful possessors from listening
to the music on a computer (See: "IBM Updates Copy-Protection
Software" by Tom Spring, CNN, April 10, 2002, at
http://www.cnn.com/2002/TECH/ptech/ 04/10/copyright.software.idg/index.html,
describing how the latest CD release by pop star Celine
Dion employed access controls that prevented playback
on a personal computer, and "Sony: Downbeat For a
New Online Music Battle" by Laura Rohde, CNN, Sept.
27, 2001 at http://www.cnn.com/2001/TECH/industry/09/27/sony.music.battle.idg/index.html,
describing how Sony Music employed access controls to
certain Michael Jackson CDs that prevented playback on
computers and CD-ROMs). Other distributors tether sound
recordings downloaded from the Internet onto the device
they are originally downloaded (See: "Music So Nice,
You Pay Twice" by Brad King, Wired News, Feb. 4,
2002 at http://www.wired.com/news/mp3/0,1285,49188,00.html
describing how Universal Music Group employed access control
measures on the downloadable recording of "Fast &
Furious -- More Music").

Argument:
There are many reasons why consumers want to be able to
move their sound recordings from their computer to CD
player, from their CD player to their Diamond Rio, or
just from their living room to their car. Some users want
to download music onto a portable MP3 player to listen
to it while jogging. Others want the ability to wirelessly
"beam" music from one device to another for
easier or continued use. There is also a cultural heritage
of making mix-tapes for one's girlfriend, or to listen
to on road trips. Today, digital technology enables people
to access their music collection in unprecedented new
ways. Transportability is one of the chief consumer benefits
of digital technology, giving consumers the ability to
"space-shift" or "place-shift" their
music from one physical location to another. This versatility
and portability has historically been part of the rights
of ownership of a sound recording and copyright law has
always been construed to empower users to 'rip, mix, burn,
and create'. Content owners have never been allowed to
control where and how and in what order a user listens
to her lawfully owned music. The DMCA changed that by
preventing circumvention of access control measures that
tether works to specific devices. To return copyright
law's traditional balance between creator and users, listeners
should be permitted to circumvent access controls that
restrict lawful listening to sound recordings on the users'
chosen platforms.

As further evidence of the desirability and support for
such an exemption, many of these portability fact-patterns
prevented by the DMCA had previously been found by courts
to be protected uses. Adopting this class exemption would
be in line with the many court decisions that have upheld
space or time-shifting. Most recently, in RIAA v. Diamond
Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir.1999),
a court held that "space-shifting" of sound
recordings between different devices is considered a lawful
personal use. Most famously, in Sony Corp. of America
v. Universal City Studios, 464 U.S. 417 (1984), the US
Supreme Court held that "time- shifting" an
entire copyrighted television show using the VCR constituted
fair use under the Copyright Act, and thus was a protected
act.

Circumvention of access control measures that tether
CDs to specific devices or platforms is necessary to allow
purchasers to listen to their music with the same ease
and versatility that they have historically exercised.
By preventing circumvention of this class of access controls,
the DMCA both denies purchasers of music the rights they
retained under copyright's historic balance and endows
creators with rights to restrict how sound recordings
are used in a manner never before contemplated or permitted.
We urge the Librarian to recommend an exemption to the
DMCA's general ban on circumvention of access control
measures to permit owners to lawfully circumvent access
control measures that tether sound recordings to specific
platforms or devices.

--------------------

CLASS 3: Motion pictures and other audiovisual works
restricted by access controls that tether the work to
a specific device or platform, thereby preventing a lawful
possessor from using the work on an unsupported system
in a non-infringing way.
Example: DVDs

Summary:
The DMCA prevents DVD purchasers from watching motion
pictures they lawfully acquire on the device of their
choosing, when the movie studios distribute the DVD tethered
to a specific device or platform. An exemption for this
class of works would allow purchasers of DVDs to lawfully
circumvent access controls for the lawful purpose of watching
their motion pictures on multiple devices or platforms.

Facts:
Motion pictures in Digital Versatile Disc (DVD) format
are increasingly restricted by technological access controls
that prevent owners from watching the movie on the platform
they choose. For example, under the Hollywood movie studios'
region coding system, consumers cannot play DVDs purchased
in one region, such as Japan, India, or Europe on machines
they purchased in another region, such as the United States.
Also, DVDs can be tethered to a single platform, preventing
users from playing the same DVD on a computer and a stand-
alone DVD player, or on a Macintosh and an IBM. The DMCA
prevents users from circumventing the technology tethering
a DVD or DVD player to the region where it was purchased
or tethering a DVD to a designated platform or device.

Argument:
There are many reasons why consumers may want to play
DVDs purchased in one region on a device manufactured
in another region. They could be planning time abroad,
have been given a gift from an overseas relative, or have
purchased a souvenir movie of a vacation spot. And there
are equally as many reasons why consumers might want to
watch a movie on multiple platforms. They could have different
DVD player in different rooms of their house, wish to
upgrade their technology, or want to play a favorite movie
for their children on a computer on a long plane ride.
Without a new specific exemption from the Librarian, the
public will be prevented from accessing their DVDs on
their own equipment in perfectly lawful and previously
protected ways.

The DMCA permitting movie studios to have total control
over a DVD's use contrasts vividly with copyright's history
of balancing the interests of publishers, creators, and
users. First, copyright owners' use of tethering to enforce
region coding conflicts with 17 U.S.C. Section 602(a),
which states that consumers do not infringe a copyright
owner's exclusive rights if they import single copies
of copyrighted works for personal, noncommercial uses.
Second, the alienability of copyrighted works is restricted
because owners are limited in acquiring and disposing
of works that are not playable on local devices or on
current device models. Third, innovation is limited because
movie studios have a de facto legal monopoly over who
can build DVD players. This unprecedented new power permits
Hollywood to enforce anti-competitive practices, such
as requiring a substantial cash bond upfront to build
a software DVD player, and anti-competitive license terms,
which by their very conditions, do not permit open source
software development of DVD playing software. Together
with the monopoly on who can build DVD players, functionality
and design restriction choices of major studios prevent
many lawful uses of a motion picture.

The practice of tethering DVDs allows copyright owners
to legally enforce region coding and consequently, price
discrimination. It also allows copyright owners to increase
revenues by forcing consumers to purchase multiple copies
of movies to play on their various platforms, devices
and operating systems. This interferes with numerous non-infringing
uses of motion pictures and other audiovisual works distributed
in digital format. It is particularly troublesome as the
copyright owners uses the DVD format as its sole means
for delivering motion pictures to users. DVDs can only
be accessed on devices or systems authorized and licensed
by the copyright owners through its licensing entity DVD-CCA.
This means that the copyright owners can control both
who makes the devices and what kinds of devices and features
are available for viewers to watch their lawfully purchased
movies. By preventing users from circumventing access
control measures on either DVDs or DVD players, the DMCA
allows copyright owners an unprecedented amount of control
over which devices enter the market, how much DVDs and
players cost, what functions and features are forbidden
to include on a DVD player, and where and how users watch
their motion pictures.

This is most famously demonstrated by the continued lack
of any device to watch movies on the Linux operating system.
Besides stand-alone DVD players, computer software can
also be written which allows for viewing a DVD on a personal
computer. Despite Hollywood's years of promises and press
releases, there is still no licensed DVD player for the
Linux operating system available for consumer purchase
(See: "Corporate Paws Grab for Desktop" by Brad
King, Wired News, Sept. 9, 2002 at http://www.wired.com/news/business/0,1367,54941,00.html).
Because of the DMCA's restriction on circumventing access
controls, users cannot circumvent the technology tethering
movies to a Microsoft operating system in order to play
those movies on a Linux operating system. And they cannot
purchase content designed for a Linux machine, as the
copyright owners do not market movies for that platform.
Thus users of the Linux operating system are de facto
prevented from viewing their legally obtained movies on
their computers.

Circumvention of access control measures that tether
DVDs to specific devices or platforms is necessary to
allow purchasers to watch motion pictures with the same
ease and versatility that they have historically exercised.
By preventing circumvention of this class of access controls,
the DMCA both denies purchasers of movies the rights they
retained under copyright's historic balance and endows
creators with new rights to restrict how movies are used
in a manner never before contemplated or permitted. We
urge the Librarian to recommend an exemption to the DMCA's
general ban on circumvention of access control measures
to permit owners to lawfully circumvent access control
measures that tether motion pictures to specific platforms
or devices.

--------------------
II. Dual Purpose Technology

CLASS 4: Literary works restricted by access controls
that limit lawful access to and post-sale uses of the
work, where circumvention allows a lawful possessor to
use the work in a non-infringing way.
Example: E-books

Summary:
When a publisher distributes an E-book in a format where
one technology limits access to and limits post-sale uses
of the book, the DMCA's restriction on circumventing an
access control technology prevents the user from circumventing
the post-sale control technology. An exemption for this
class of works would allow purchasers of E-books to lawfully
circumvent access controls for the lawful purpose of exercising
the full bundle of their post-sale rights.

Facts:
Literary works distributed in electronic format, often
called E-books, are increasingly restricted by technological
controls that both prevent owners from accessing their
book and limit owner's post-sale non-infringing use of
their book. For example, Adobe's E-book access-restriction
technology allows publishers to disable many post-sale
lawful uses of the book, such as printing a single page,
reading the text aloud, or 'space-shifting' an E-book
to a hand-held device for more convenient reading. Since
it is often the same technology that restricts access
to an E-book that also restricts its post-sale use, the
DMCA's ban on bypassing access controls allows E-book
publishers to also control the consumer's use of the E-book
by technology that cannot be lawfully circumvented (See:
"Digital Copyright Overkill" by the Economist,
Dec. 5, 2002 at http://www.economist.com/business/displayStory.cfm?story_id=1482259
and "Security Technologies Could Backfire Against
Consumers" by Robert Lemos, CNET News, Nov. 7, 2002
at http://news.com.com/2009-1001-964628.html describing
how dual-purpose technologies inhibit post-sale uses of
literary works).

Argument:
Ebook readers have a legitimate need to be able to circumvent
and disable certain post-sale access controls in order
to exercise the traditional rights of book ownership.
These post-sale access controls, colloquially termed Digital
Rights Management Systems (DRMS), allow E-book publishers
to prevent a wealth of fair uses, including the right
to print, parody, space shift, sell, and trade the book.
Together with the rights protected under the DMCA, DRMs
give E-book publishers unprecedented control over an individual's
reading experience. The traditional copyright balance
has tipped dramatically against the consumer and must
be corrected if readers are to retain their lawful rights
to use books in the digital realm.

The exemption is also necessary to satisfy Congress'
intent in passing the law. In enacting the DMCA, Congress
specifically intended to permit the circumvention of access
controls where it was necessary for users to exercise
fair uses. E-book publishers and technology companies
are 'circumventing' Congress' clear intent by applying
dual use technologies to E-books. By doing so, they prevent
readers from bypassing any of the post-sale use restrictions
lawfully, because to do so would also mean bypassing the
access controls which is forbidden by the DMCA.

Circumvention of dual use technologies that limit both
access and post-sale use is necessary to allow purchasers
to read, print, use and resell literary works with the
same ease and versatility that they have historically
exercised. By preventing circumvention of this class of
access controls, the DMCA both denies purchasers of literary
works the rights they retained under copyright's historic
balance and endows creators with rights to restrict how
literary works are used in a manner never before contemplated
or permitted. We urge the Librarian to recommend an exemption
to the DMCA's general ban on circumvention of access control
measures to permit owners to lawfully circumvent technological
measures that limit both access and post-sale use of the
work, where the post sale use is protected under copyright
law.

-----------------

CLASS 5: Sound recordings restricted by access controls
that limit lawful access to and post-sale uses of the
work, where circumvention of the technology allows a lawful
possessor to use the work in a non-infringing way.
Example: Copy-restricted CDs

Summary:
When a recording company distributes a sound recording
in a format where one technology limits access to and
limits post-sale uses of the recording, the DMCA's restriction
on circumventing an access control technology prevents
the user from circumventing the post-sale control technology.
An exemption for this class of works would allow purchasers
of CDs to lawfully circumvent access controls for the
lawful purpose of exercising the full bundle of their
post-sale rights.

Facts:
Compact Discs (CDs), music downloaded from the Internet,
and other types of sound recordings are increasingly restricted
by technological controls that both prevent owners from
listening to their music and limit owners' post-sale use
of their music. Growing numbers of copy-restricted CDs
are distributed to the public treated with a technology
that disable consumers ability to copy or otherwise use
CDs in various lawful ways. If music CDs are only available
in a restricted format, then individuals will not be able
to engage in many lawful uses, including fair use of the
work, whether for review and criticism or for personal,
noncommercial copying. For example, users' ability to
copy their music so that they can listen to it on other
devices is being increasingly restricted by the release
of CDs protected by access control technologies (See:
'No more music CDs without copy protection', claims BMG
Unit', John Lettice. The Register, November 6, 2002 at
http://www.theregister.co.uk/contents/54/27960.html, and
'All CDs will be protected and you are a filthy pirate´,
John Lettice. The Register, November 8, 2002 at http://theregister.co.uk/content/54/28009.hyml,
describing the types of post-sale access controls that
are being placed on CDs).

Argument:
The DMCA distinguishes between circumventing access controls
and circumventing copy controls and allows circumvention
of copy controls in order to engage in fair use. In passing
the DMCA, Congress clearly intended the public to continue
to enjoy the right to circumvent copy controls on sound
recordings for lawful purposes. While in theory, consumers
continue to enjoy the right to circumvent copy controls
to make fair use or to engage in other lawful uses of
sound recordings, the law still forbids bypassing access
technology, and since its not possible to bypass copy
controls without also bypassing access controls with dual
use technologies, consumers are prevented from exercising
the right to bypass the copy controls on sound recordings
in order to make lawful use of their music.

Copyright holders only have the right to control public
performances of works under copyright law. But the private
performance of a work -- the private experiencing of a
work -- is intended to remain under the control of the
individual. In total disregard to thiis clear limitation
of rights, copyright owners are usurping the individual's
private performance right through the use of technological
access controls that "double" as use controls.
Circumvention of dual use technologies that limit both
access and post-sale use is necessary to allow purchasers
to enjoy their sound recordings with the same ease and
versatility that they have historically exercised. By
preventing circumvention of this class of access controls,
the DMCA both denies purchasers of music the rights they
retained under copyright's historic balance and endows
creators with rights to restrict how sound recordings
are used in a manner never before contemplated or permitted.
We urge the Librarian to recommend an exemption to the
DMCA's general ban on circumvention of access control
measures to permit owners to lawfully circumvent technological
measures that limit both access and post-sale use of the
sound recordings, where the post sale use is protected
under copyright law.

----------------

CLASS 6: Motion pictures and other audiovisual works
restricted by access controls that limit access to and
post-sale uses of the work, where circumvention of the
technology allows a lawful possessor to use the work in
a non-infringing way.
Example: DVDs

Summary:
When a movie studio distributes a movie in a format where
one technology limits access to and limits post-sale uses
of the audiovisual work, the DMCA's restriction on circumventing
an access control technology prevents the user from circumventing
the post-sale control technology. An exemption for this
class of works would allow purchasers of movies to lawfully
circumvent access controls for the lawful purpose of exercising
the full bundle of their post-sale rights.

Facts:
Motion pictures distributed in Digital Versatile Disc
(DVD) format are increasingly restricted by technological
access controls that both prevent owners from accessing
their movies and limit owners' post-sale uses of their
movies. For example, many DVDs are distributed with an
access control technology called the Content Scrambling
System (CSS) that also controls post-sale use of the movie
(See: "'Tarzan' DVD forces viewers through a jungle
of previews" Greg Sandoval, CNET News March 2, 2000
at
http://news.search.com/click?sl,news.43.282.1278.0.1.%22
fast+forward%22+dvds.0,http%3A%2F%2Fnews%2Ecom%2Ecom%2F2100%2D1017%2D237585%2Ehtml
describing how Disney's "Tarzan" DVD prevents
the consumers from fast-forwarding through the DVD's initial
advertisements).

Argument:
The DMCA distinguishes between circumventing access controls
and circumventing copy controls and permits circumvention
of copy controls in order to engage in fair use. In passing
the DMCA, Congress clearly intended the public to continue
to enjoy the right to circumvent copy controls on motion
pictures for lawful purposes. However, by exploiting the
DMCA's ban on bypassing technological access controls,
copyright owners are gaining greater control over the
post-sale experience and use of a motion picture. This
is beyond what copyright law grants or that the First
Amendment permits. By using the same technology to regulate
access to, and to regulate use of a DVD, the movie studios
have created the de facto right to control private performances
where a de jure right never existed.

Furthermore, by refusing to license the creation of DVD
players that permit copying or allow other lawful post-sale
uses, copyright owners are using the DMCA to eliminate
consumers' control over their own experience of audio-visual
works. Without the ability to circumvent use controls,
individuals are forced to experience motion pictures in
a manner controlled by the movie industry. For example,
parents who want to fast-forward through age-inappropriate
movie-previews are prevented from that legitimate activity
by CSS access controls and consumers are forced to watch
advertisements, since bypassing the technology that prevents
fast-forwarding during those ads would be a DMCA violation.

Circumvention of dual use technologies that limit both
access and post-sale use is necessary to allow purchasers
to view movies with the same ease and versatility that
they have historically exercised. By preventing circumvention
of this class of access controls, the DMCA both denies
purchasers of movies the rights they retained under copyright's
historic balance and endows creators with rights to restrict
how motion pictures and other audiovisual works are used
in a manner never before contemplated or permitted. We
urge the Librarian to recommend an exemption to the DMCA's
general ban on circumvention of access control measures
to permit owners to lawfully circumvent technological
measures that limit both access and post-sale use of their
movies, where the post sale use is protected under copyright
law.

Ancillary audiovisual
works distributed on Digital Versatile Discs (DVDs) using
the Content Scrambling System (CSS) of access control.

Summary

The
Content Scrambling System (CSS) is an access control device
for ancillary audiovisual works distributed on Digital
Versatile Discs (DVDs), a fact affirmed by the 2nd Circuit
Court of Appeals. CSS prevents quotation of ancillary
audiovisual works distributed on DVDs for purposes of
commentary and criticism, which is a noninfringing use
under current law. Consideration of the factors enumerated
in § 1201(a)(1)(C) supports the conclusion that an
exemption is warranted. An exemption will have no effect
on the availability for use of copyrighted works: the
vast number of ancillary audiovisual works are not available
in unprotected formats; CSS access control on DVDs does
not support a model beneficial to the public; and, availability
of ancillary works on DVDs is driven by consumer demand
and filmmaker enthusiasm. The effect on the availability
for use of copyrighted works for nonprofit archival, preservation,
and educational purposes is negative. The impact that
the prohibition on the circumvention of technological
measures applied to copyrighted works has on criticism
and comment is highly negative: fair use criticism and
comment are a core concern of the First Amendment and
must be granted special solicitude; the DMCA is a criminal
statute and effects on free speech concerns must be scrutinized
with particular care; ancillary materials are particularly
important elements to quote for purposes of comment and
criticism; the mere possibility of copying without violating
§ 1201(a)(1) is not sufficient to protect strong
First Amendment rights; and, there is significant harm
to an amateur reviews website and its contributors. The
effect of circumvention of technological measures on the
market for or value of copyrighted works is slightly positive,
with no negative effects. In the alternative, the Librarian
of Congress may determine that CSS is not an access control
device because it does not control access to a work. This
interpretation is supported by Congressional intent and
statutory analysis, at best CSS is copy protection.

Class
of works to be exempt: copyrighted content that the copyright
holder consents to publish or distribute without payment.
A slightly broader way to describe this class: copyrighted
content for which the copyright holder consents to provide
*open access*, when "open access" is defined as
access permitting the unrestricted reading, downloading,
copying, sharing, storing, printing, searching, linking,
and crawling of some body of work.

The most important works in this class are scientific
and scholarly journal articles, at least when the copyright
is retained by the author or transferred to an open-access
journal. (When the author's copyright is transferred to
a traditional journal, the new copyright holder will virtually
never consent to open access, so we're not talking about
that case.)

Scientific and scholarly journal articles are in this
class because scholarly authors are not paid for journal
articles and do not expect payment. They are paid by their
employers and share their research articles freely for
the sake of advancing knowledge. They write for impact
and not for money. When they retain copyright, or transfer
it to an open-access journal, then the copyright holder
will typically consent to open access. Access-blocking
DRM would frustrate this intention.

For the purpose of this rule-making, it shouldn't matter
whether copyright-holder consent to open access is rare
or frequent (hence, whether this class is small or large).
In fact, the class is small but growing larger every day.
The exemption is needed on the merits and in order to
give this class a better chance of growing larger.

Summary

The
argument: When copyright holders consent to relinquish
revenue, or consent to open access, then the copyright
statute should not stand in their way. Copyright holders
have a right to waive their rights, just as much as they
have a right to enforce them. When authors sacrifice revenue
in order to reach a larger audience, or in order to share
and advance knowledge, then readers ought to get the benefit
of the author's sacrifice. At the very least, access-blocking
DRM will thwart, not serve, this class of copyright holders.

For this class of works, an exceptionless anti-circumvention
clause threatens readers with criminal penalties for gaining
the kind of access that the copyright holder desires to
make available. When authors consent to open access, then
all use is non-infringing use. Preventing readers from
taking advantage of this gift from authors not only frustrates
copyright holders who wish to make this gift, but negates
their sacrifice in relinquishing revenue, obstructs the
free exchange of scientific ideas, and impedes research.

For these reasons, most works in this class will be published
in open-access archives or open-access journals, without
DRM, and consequently circumvention will never be an issue.
But the exemption is needed for the occasional works of
this class for which user access is hindered by DRM barriers.
Here are some examples:

1. A scholar makes a point of publishing her research
in an open-access journal. But several years later, the
journal is sold to a publisher who changes the business
model of the journal, and makes back issues accessible
only to paying customers. The copyright holder's consent
to provide open access has not changed.

2. A scholar's work is published online by an open-access
journal. But that journal is indexed by a search engine
that also indexes many priced and access-restricted journals.
Rather than discriminate and give free access to the free
articles and priced access to the priced articles, it
charges for full-text access to any article that comes
up in response to a search.

3. A government agency decides to outsource its publishing,
bypassing the GPO and its open-access policies. The private-sector
publisher makes the (public-domain) papers and other documents
of the agency available only to paying customers.

The general principle behind this request for an exemption
was also asserted in a public statement by France's Académie
des Sciences on December 6, 2001. The French Académie
called on the European Commission not to apply ordinary
copyright rules to scientific publications for which the
authors seek no payment.
http://www-mathdoc.ujf-grenoble.fr/DA/

For more on open access, see the Budapest Open Access
Initiative. (For example, the BOAI makes clear that many
authors consenting to open access wish to retain copyright
rather than put their works into the public domain.)
http://www.soros.org/openaccess/

Click-wrap
restrictions on use of data archival mechanisms, if enforceable
through the DMCA, can cripple the ability of businesses
and individuals to move their own data to new computer
systems. Access to one's own data is surely "fair
use" of a copyrighted data archival mechanism, even
if under circumstances which were not anticipated by the
vendor at the time of sale. Copyrighted software code
governing data archival and retrieval can be barred prevented,
using technological means and click-wrap "contract"
terms, from access to custodians' data for this legitimate
purpose to the detriment and penury of data custodians
seeking migration to new computing environments.

Literary and
audiovisual works embodied in software whose access control
systems prohibit access to replicas of the works

Summary

We
have been given collections of copyrighted work in formats
or on media that are degrading and becoming obsolete with
time. To preserve these works, it is imperative that they
be migrated to modern storage systems and that the reproductions
be accessed to verify the accuracy and completeness of
the transfer. This must be done before the formats or
media become obsolete or damaged. This use is a non-infringing
use protected by Sections 107, 108 and 117 of the Copyright
Act. The proposed exemption is important to preserving
the availability of the works and enabling archiving,
future scholarship, and commentary. Furthermore, the proposed
exemption is narrowly drawn and does not damage the market
for the works. Without the ability to circumvent access
controls in order to access archived reproductions, we
have no way of ensuring this essential non-infringing
use, and these works will vanish from the historical record
of the 21st century.

The American Foundation
for the Blind proposes an exemption for the class of works
defined as "literary." We propose this exemption
because currently deployed anti-copy technology does not
support fair use of this class of works intended by Congress.

(1)
Musical recordings and audiovisual works, protected by access
control mechanisms whose circumvention is reasonably necessary
to carry out a legitimate research project, where the granted
exemption applies only to acts of circumvention whose primary
purpose is to further a legitimate research project

(2) Musical recordings and audiovisual works, protected
by access control mechanisms whose circumvention is reasonably
necessary to carry out a legitimate research project

Summary

The
requested exemption would enable legitimate research relating
to access control technologies. At present, much research
of this type is impossible due to the prohibition on acts
of circumvention in 1201(a)(1). The requested exemption
would allow this research to proceed.
The current state of the art in access control technology
is due in large part to past research on those technologies.
Yet today’s state of the art does not provide the
desired level of protection for copyrighted content, so
future research is needed. Without an exemption for legitimate
research, much of the needed research will not occur.
The requested exemption is not limited to encryption research
but would cover all of the legitimate access control research
that is being prevented by 1201(a)(1).
My account of the harms caused by 1201(a)(1) – harms
that would continue to accrue absent an exemption –
is based in part on my direct personal experience in performing
access control research prior to the effective date of
1201(a)(1), and on my personal plans to resume such research
should an exemption be granted. My account is also based
on my general knowledge about my colleagues in the computer
security research community, and my colleagues in other
scholarly fields.
I realize that the Librarian might conclude that it is
impossible, within the confines of the NOI to grant an
exemption for legitimate research. The Librarian might,
for example, reach such a conclusion based on a determination
that the NOI does not allow the Librarian to create an
exemption that is narrowly tailored to enable legitimate
research. If the Librarian does conclude that the NOI
does not allow an exemption to protect legitimate research,
I ask the Librarian to state that conclusion clearly,
so that it is clear that any legitimate-research exception
to 1201(a)(1) would require Congressional action.

2. “Fair Use Works” – This class is
meant to be a more flexible version of proposed exemption
no. 1 above. The exemption would apply to “any lawfully
acquired copy or phonorecord including a copyrighted work
falling within any category in section 102 that, due to
its nature and the users who typically use it, is likely
to be lawfully used in particular environments under the
fair use doctrine. The exemption shall apply only to such
users in connection with such fair use” (e.g., the
exemption would protect a university professor who circumvents
a lock on a lawfully acquired e-book to use a short excerpt
in a classroom setting, but would no longer protect the
professor from suit under section 1201 if the professor
then posts the (unlocked) e-book on the public Internet).

3. “Per se Educational Thin Copyright Works”
– Thin Copyright Works are works that contain limited
copyrightable subject matter, and which derive significant
value from material in the public domain, such as facts,
processes, ideas, or other elements that are beyond the
scope of copyright protection. To satisfy concerns of
vagueness, the Copyright Office should recommend a specific
list of types of works that are subject to the exemption,
i.e., a “per se” list. The list proposed herein
is focused on those works most often lawfully used in
research and education. Thus, this class of exempt works
consists of “particular subcategories within section
102 and 103, namely databases, histories, statistical
reports, abstracts, encyclopedias, dictionaries, and newspapers.”

4. “Thin Copyright works” – This category
consists of “works that contain limited copyrightable
subject matter, and which derive significant value from
material in the public domain, such as facts, processes,
ideas, or other elements that are beyond the scope of
copyright protection.”

5. “Any work to which the user had lawful initial
access (i) during the period of lawful access, or (ii)
after any period of lawful access if the user has physical
possession of a copy of the work.”

Summary

1.
The works fall within a category set forth in section
102, and thus fall within the 2002 NOI’s stated
preference that section 102 constitute a “starting
point” for the exempt class. “Per se”
Educational Fair Use Works, due to their nature and the
users who typically use them, are highly likely to be
used in educational environments for fair use purposes
such as teaching and scholarly research. Thus, application
of TPMs that prevent access to such works will adversely
affect the ability of users to engage in such fair use.
If the Copyright Office is concerned about potential abuses
of the exemption, a “user and environment”
restriction could be placed on this “per se”
list, as described in proposed exemption no. 2.

2. Contrary to the Librarian’s determination as
reflected in the 2000 Final Rule, the relevant section
1201 “classes of works” may be defined with
reference to the users of such works as well as the type
of use to which such works are put. The statute, in defining
the scope of the exemption, expressly references the “persons
who are users” of the copyrighted work at issue,
17 U.S.C. § 1201(a)(1)(B). Similarly, the statutory
provision that provides for this rulemaking refers to
the “users” who are adversely affected in
their ability to make “noninfringing uses,”
17 U.S.C. § 1201(a)(1)(C), and the provision that
provides for publication of exempt classes of works refers
to the “users” to whom the prohibition shall
not apply. 17 U.S.C. § 1201(a)(1)(D).

This proposed category of “Fair Use Works”
does nothing more than permit users to engage in their
legal right of fair use, unimpeded by access control technologies.
As Congress expressed throughout the legislative history,
the triennial rulemaking was specifically meant to permit
such activity.

3. Works in the above category most likely derive significant
value from material in the public domain, such as pure
facts, or other elements beyond the scope of copyright
protection, such as ideas. Thus, the application of an
effective TPM to such works would preclude users from
obtaining access to elements of a work that are not protected
by copyright law. While the Librarian noted in the 2000
Final Rule that such works also include copyrightable
elements, the use of such elements remain subject to copyright
law remedies (e.g., infringement suits) notwithstanding
the proposed exemption. Copyright owners should not be
able to preclude the public from accessing non-protectible
features of a “Thin Copyright” work. The scope
of 1201 was not meant to extend beyond copyrightable features
of a work, and it is well established that the raw facts
and ideas in a work may be copied at will. See, e.g.,
Feist Pubs., Inc. v. Rural Telephone Service Co., 499
U.S. 340, 348, 350 (1991).

4. Because the “per se” list in exemption
no. 3 could leave out significant categories of Thin Copyright
works, this more flexible exemption also should be adopted.
Although not necessary, a limitation as to the types of
users (professors, staff, and students) and context of
use (education and research) could be applied to this
category.

5. Congress intended to distinguish between access control
and use control TPMs. The content community has made clear
that it intends to use technologies that it classifies
as “access control” to implement use control,
effectively eliminating the distinction Congress intended
to preserve. Recent multi-industry consortia concerned
with protection of content on CDs (“Secure Digital
Music Initiative” (SDMI)), DVDs (“DVDCCA Call
for Proposals” on a watermarking technology), and
digital broadcast television (“Broadcast Protection
Discussion Grouop” (BPDG)) confirm the major content
owners’ goals of end-to-end technological control
over all uses of their content. The proposed exemption
no. 5 prevents this result and preserves the rights of
users to engage in lawful uses of lawfully acquired content.
The scope of the exemption is appropriate, because the
exemption does not apply after the initial, lawful access
unless the user possesses a physical copy (in which case
the user should be entitled to continue accessing the
work, while his use thereof will be subject to copyright
law and, in appropriate cases, license).

1.
Those literary works, musical works and audiovisual works,
for which a person has lawfully obtained a right of use,
protected by access control mechanisms which include features,
flaws or vulnerabilities that (a) expose (i) the works to
be protected or (ii) other assets of the users of such measures--including
computers, computers systems or computer networks or the
data or other protected works used with them--to infringement,
compromise, loss, destruction, fraud and other adverse actions
or (b) permit the privacy of such users to be compromised.

2. Those literary works representing computer software
programs and databases, for which a person has lawfully
obtained a right of use, that operate to control access
to works protected under the Copyright Act but contain
features, flaws or vulnerabilities that (a) expose (i)
the works to be protected or (ii) other assets of the
users of such measures--including computers, computers
systems or computer networks or the data or other protected
works used with them--to infringement, compromise, loss,
destruction, fraud and other adverse actions or (b) permit
the privacy of such users to be compromised.

4. Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit
access because of malfunction, damage or obsoleteness.

Summary

1.
Access control mechanisms that fail to provide adequate
security to the works they are intended to protect are
also likely to expose the authorized user of a computer,
computer system, or network to damage or loss, including
the loss of privacy. The presence of these flawed mechanisms
exposes other protected works on related computers, computer
systems, and networks, to unauthorized access. The requested
exemption permits those with a lawful right of access
to conduct additional research, scholarship and criticism
regarding the adequacy of the control mechanisms, as well
as protected works, within the scope of fair use. Prohibiting
circumvention relating to the proposed exempt class of
works is estimated to cost the American economy significant
amounts per year (although precise cost estimates are,
for a variety of reasons including underreporting of losses
and the existence of indirect losses, !
virtually impossible to ascertain) due to (a) unauthorized
access through defective control mechanisms, (b) costs
incurred by consumers and businesses to repair features,
flaws or vulnerabilities in such control mechanisms and
(c) lost revenues from users who avoid expenditures on
protected works and related computer-based expenses out
of concern for security and privacy risks associated with
the related access controls. The proposed exemption will
have no adverse impact upon the owners of the classes
of works for which the exemption is requested.

2. Computer software programs and databases that operate
to control access to works protected under the Copyright
Act can contain features, flaws or vulnerabilities that
expose the computers, systems, networks and other assets
of authorized users to damage or loss, including the loss
of privacy. In furtherance of the exemptions relating
to circumvention available under Section 1201(e), 1201(g)
and 1201(j), the proposed exemption permits authorized
users to vigorously research, test and verify the functionality
of the class of works to which the proposed exemption
relates, and to publish related results and criticisms
regarding such works, within the scope of fair use. The
costs of prohibiting circumvention of the proposed exempt
class of works are enormous. The failure to be able to
test, and subsequently remediate, security flaws in software
and databases is estimated to cost the American economy
significant dollar amounts per year due to (a) unauthorized
access through de!
fective control mechanisms, (b) costs incurred by consumers
and businesses to repair features, flaws or vulnerabilities
in such control mechanisms and (c) lost revenues from
users who avoid expenditures on protected works and related
computer-based expenses out of concern for security and
privacy risks associated with the related access controls.
These costs are matched by the continued risks of substantial
harms not yet realized from future adverse events related
to the inability to circumvent and test access controls
protecting the class of work.

3. The proposed exemption is fully supported by the rationale
adopted by the Register in the initial exemption rulemaking
under Section 1201(1)(a)(3). There have been no changes
in the marketplace or in the related technologies or business
practices that mitigate against the necessity for continuing
the exemption.

4. The proposed exemption is fully supported by the rationale
adopted by the Register in the initial exemption rulemaking
under Section 1201(1)(a)(3). There have been no changes
in the marketplace or in the related technologies or business
practices that mitigate against the necessity for continuing
the exemption.

Identification
of Class 1:
Sound recordings and audiovisual works (including motion
pictures) embodied in copies and phonorecords, protected
by access control mechanisms employed by or at the request
of the copyright holder that fail to permit the private
(i.e., non-public) performance of the works without the
consent of the copyright holder after all lawful conditions
surrounding the reproduction in the copy or phonorecord
have been met.

Identification of Class 2:
Sound recordings and audiovisual works (including motion
pictures) embodied in copies and phonorecords, protected
by access control mechanisms which require the use of
a computer operating system, media player, codec or digital
rights management system specified by the copyright holder
in order to gain lawful access.

Identification of Class 3:
Sound recordings and audiovisual works (including motion
pictures) embodied in copies and phonorecords, protected
by access control mechanisms employed by or at the request
of the copyright holder which tether the lawfully made
copies and phonorecords to a particular digital playback
device.

Identification of Class 4:
Sound recordings, audiovisual works and literary works
(including computer programs) protected by access control
mechanisms employed by or at the request of the copyright
holder which require, as a condition of gaining access,
that the prospective user agree to contractual terms which
restrict or limit any of the limitations on the exclusive
rights of that copyright holder under the Copyright Act.

Identification of Class 5:
Sound recordings, literary works (including computer programs
and databases), and audiovisual works (including motion
pictures), protected by access control mechanisms by or
at the request of the copyright holder which require,
as a condition precedent to granting access, that the
user directly or indirectly disclose personally identifiable
information to the copyright holder other than such information
as is reasonably necessary to complete a bona fide business
transaction.

Identification of Class 6:
Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit
access because of malfunction, damage or obsoleteness.

Identification of Class 7:
Works embodied in copies or phonorecords that have been
lawfully acquired by users or their institutions who subsequently
seek to make noninfringing uses thereof.

Summary

Summary
of Argument for Class 1 Exemption:
This proposed class is narrowly crafted to permit lawful
use of access control technology (hereafter “ACT”)
to protect exclusive rights or the copyright holder while
providing a public safety valve in the event a copyright
holder uses ACT to prevent the access needed to perform
a work privately, thereby extending copyright-holder control
beyond the limits of the copyright grant and infringing
upon lawful (and noninfringing) uses encouraged by the
Copyright Act.

The exclusive right to perform a work privately has never
been granted any copyright owner. It is always a non-infringing
use. The performance right is specifically limited in
subsections 106(4) and 106(6) to the exclusive right to
perform a work “publicly.” As a result, it
can never constitute copyright infringement to perform
a work privately. Nevertheless, many copyright owners
are making the right to perform their works privately
exclusive to themselves by using ACTs to condition the
grant of a license to reproduce a work into copies or
phonorecords on the licensee’s conveyance to the
copyright holder of control over private performances.
This conveyance may be carried out in part by a required
End-User License Agreement (“EULA”) (see proposed
Class 4) and carried out by the use of ACTs.

When copyright holders employ ACTs to control lawful
uses of works – uses that fall outside of the scope
of the exclusive rights of the copyright holders –
they are misusing ACTs to expand the scope of their copyrights
and infringe upon rights reserved to the public. Since
such use of ACTs does nothing to protect copyrights from
infringement, but has the sole purpose and effect of capturing
for the copyright holder a right Congress reserved to
the public, it would serve the public interest without
impairing the rights of the copyright holder to permit
the lawful circumvention of such ACTs for the purpose
of privately performing these works.

Summary of Argument for Class 2 Exemption:
Since the beginning of copyright law, authors have relied
upon the creativity, ingenuity, business skill, invention,
and competition of others to disseminate their works to
the public. Until just recently, authors generally had
no means to distribute their works to the masses themselves.
Indeed, copyright law must have been invented precisely
because reliance upon private contractual terms in which
the author attempted to maintain privity of contract with
each person receiving a work was a very poor method of
promoting science and the useful arts, or even serving
the author’s economic interests. Copyright law lifted
the “business” burden from authors, and provided
for a careful balance of public rights that served authors
as a means of serving the public.

Thus, even as major companies amassed large copyright
holdings, it has long been the case that they relied upon
delivery systems owned or controlled by others. Book publishers
profited most by not trying to also be printers, paper
mills or bookstores, music publishers profited most by
not having to become (or control) vinyl record or record
player manufacturers, radio and television broadcasters
relied upon radio and television manufacturers, and so
on. Today, that trend continues, even as the digital dissemination
of copyrighted works relies upon ever more complex systems,
including electronic devices (computers, routers, servers,
drives, sound cards, speakers) and computer software (media
players, codecs and security software).

This system of keeping the exclusive rights of copyright
holders within strict limits has served us well. There
is absolutely no “copyright interest” to be
advanced by permitting copyright holders to leverage their
lawful copyright monopolies into dictating which computer
operating systems, media players, codecs or digital rights
management systems must be used by those exercising licensed
exclusive rights of reproduction or public performance
or, worse, by those exercising rights that have never
belonged to the copyright holder, such as the right to
perform a work privately.

Recognizing this, our judiciary has produced a long line
of cases condemning the use of one copyright to bolster
the value of other material, copyrighted or not. Provision
of an exemption is a necessary corollary to respect for
the limits upon the copyright established by Congress.
Allowing competition in the development of competing technologies
used in the dissemination of copyrighted works serves,
rather than hinders, the public interest in copyright
law. Allowing such competition in no way impairs the exclusive
rights of copyright holders. Suppression of such competition,
in contrast, can serve no public interest. Accordingly,
where copyright holders seek to use technological devices
to enlarge their limited rights into control over broader
non-exclusive areas of public and private discourse, over
technology, over various distribution systems, over media
channels, and over the Internet itself, the public must
have at its disposal the freedom to use its own technological
devices to break free.

Summary of Argument for Class 3 Exemption:
Copyright holders are increasingly employing technological
devices to deny access to works which, once lawfully made,
are attempted to be played on devices other than the one
to which the copyright holder has “tethered”
the copy or phonorecord. As in the case of proposed Classes
1 and 2, such tethering does nothing to advance any legitimate
interest of the copyright holder. More importantly, tethering
serves to deny downstream users the ability to access
the works, completely voids application of the first sale
doctrine and the operation of Section 109 of the Copyright
Act, destroys all lawful trade and commerce competing
sales, rentals, lending and gifts that might compete with
“original” access in a monetized transaction
benefiting the copyright holder, and denies access to
copyrighted works to those millions of Americans who,
due to lack will or means to pay full price for a “new”
reproduction, rely upon the used market, public libraries,
private lending and gift economies to satisfy their thirst
for learning, art and entertainment.

Summary of Argument for Class 4 Exemption:
With increasing frequency, copyright holders are using
ACTs to require assent to EULAs as a condition precedent
to gaining access to copyrighted works. Some EULAs can
have public and private benefits if they spell out rights
of the copyright holder that are being licensed (or not)
to the end user. Others, however, require users to agree
to give the copyright holder additional rights denied
to them in the Copyright Act.

In some cases, the copyright holder may use the ACT to
require the user to give the copyright holder control
over noninfringing uses that fall entirely beyond the
scope of the copyright. Such would be the case of EULAs
giving the copyright holder control over non-exclusive
rights such as nonpublic performances of a work, for example.
In other cases, the ACT will be used to require assent
to waiving limitations placed upon the copyrights, such
as the limitations in sections 107-122 to which all section
106 rights are subject. An ACT used to require assent
to terms preventing the lawful redistribution (meaning
redistribution of physical objects) of lawfully made copies
and phonorecords would be but one example.

When the purpose and effect of an ACT is to enlarge the
scope of the copyright beyond the limits imposed by Congress,
the EULAs themselves should be void as against public
policy. Naturally, any use of ACTs to require assent to
such EULAs should be considered copyright misuse. It would
serve the public interest without harming any rights of
the copyright holder to permit circumvention of ACTs used
by copyright holders to leverage the licensing of lawful
rights into assent to copyright-enlarging EULAs.

Summary of Argument for Class 5 Exemption:
The courts have already recognized the application of
the First Amendment to the protection of anonymous speech.
Congress has further extended such protection to the private
sector by prohibiting private disclosure of personally
identifiable information concerning users of audiovisual
works, literary works and other materials used by library
patrons. This proposed class furthers the dual objectives
of the Copyright Clause of the Constitution and the First
Amendment to the Constitution by allowing users of copyrighted
works to circumvent efforts by copyright holders to require
that they disclose personally identifiable information
as a condition precedent to obtaining access.

Just to be clear what this class does not do, this exemption
would not invalidate a requirement that persons seeking
access disclose personally identifiable information where
necessary to complete a bona fide business transaction,
such as in the provision of credit card information or
account-holder information for payment. Rather, this exemption
would only mean that everyday actions such as preventing
a DRM from reporting to the copyright holder the identity
of the user of a lawful reproduction as part of separate
data-mining activities of the copyright holder would not
be actionable as a violation of Section 1201(a).

Summary of Argument for Class 6 Exemption:
This exemption is identical to an exemption currently
in effect, 37 C.F.R. § 201.40(b)(2). Because there
are already market examples of such malfunction, damage
or obsolescence that prevent noninfringing use for which
the product was intended, this exemption should be extended
for another term.

Summary of Argument for Class 7 Exemption:
This proposed class follows the proposal of the National
Telecommunications and Information Administration (“NTIA”)
in its September 29, 2000 letter to the Register of Copyrights.
As the Assistant Secretary for Communications and Information
explained at the time on page 4 of the letter, “this
construction is appropriate because the definition of
classes of works [in Section 1201(a)(1)(B)] is not bounded
by limitations imposed by Section 102(a) of the Copyright
Act, but incorporates an examination of ‘noninfringing
uses’ of the copyrighted materials.”
The greatest appeal of this Class 7 is its simplicity
(making it easy for the average citizen to understand),
its comprehensiveness (covering all noninfringing uses),
its furtherance of the pubic interest (by encouraging
unfettered use of lawfully acquired content), and its
incentive for copyright holders to facilitate lawful uses
rather than to impede them (by discouraging copyright
holders or their licensees from using access control technologies
to infringe upon the public’s rights).

A major substantive difference in Class 7 as previously
proposed by the NTIA from the other classes proposed herein
is that this exemption would apply without regard to whether
the ACT was imposed by or at the request of the copyright
holder. The other proposed classes would not create an
exemption for competitive business models offered independent
of the copyright holder and which do not unlawfully extend
the scope of the copyright holder’s copyright monopoly
through use of ACTs.

Discovering
what is truly banned by censorware has been a matter of
public debate. Such evidence has played an important role
in
litigation such as the _Mainstream Loudoun v. Loudoun
County Library_ library censorware case, or the Children's
Internet Protection Act (CIPA) case. Studies of censorware
blacklists are vastly hindered by not being able to access
those blacklists. In particular, studying structural,
architectural issues, such as "loophole" sites,
requires
access to the decrypted blacklist.

2. Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit
access because of malfunction, damage or obsoleteness.

3. Literary works, including computer programs and databases,
protected by access control mechanisms that are at high
risk of failure in the near-term future because of malfunction,
damage or obsoleteness. In order to invoke this case,
the potential malfunction, damage, and/or failure must
not be due intentional damage meant to invoke this clause.

4. Literary works, including computer programs and databases,
that can only be accessed indirectly via an access control.

5. Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit
access because of the copyright owner and/or their designated
agent fail to provide the necessary support means.

6. Literary works (including computer software and databases),
musical works, and motion picture works which are region
encoded, and for which the nearly identical product except
for being keyed for a region containing the United States
does not exist for mass-market consumption within the
United States.

Summary

1.
Previously, the Librarian of Congress decided to exempt
this class of works from the access provisions of the
Digital Millennium Copyright Act (DMCA). Research done
under this exemption has resulted in a number of findings,
many of which are of interest to the general public. It
is therefore requested that this class be considered for
renewal.

2. The Librarian of Congress previously decided to exempt
"literary works, including computer programs and
databases, protected by access control mechanisms that
fail to permit access because of malfunction, damage or
obsoleteness" from the access provisions of the Digital
Millennium Copyright Act's access previsions for the current
exemption period. And just like the previous period, literary
works are still subject to malfunction, damage, or obsoleteness.
It is therefore requested that this class be considered
for renewal.

3. The Librarian of Congress previously decided to exempt
"literary works, including computer programs and
databases, protected by access control mechanisms that
fail to permit access because of malfunction, damage or
obsoleteness" from the access provisions of the Digital
Millennium Copyright Act's access previsions for the current
exemption period. But during my personal reading of the
Library's explanations, I did not notice any discussion
on how to handle works that are likely to fail in the
near-term future.
It is therefore requested that the Librarian of Congress
either renew the previous exemption case with an additional
clause permitting, or to add an additional allowed case
to allow recovery of works likely to fail in the near
term future, when such failure is not intentionally aggravated
to invoke this clause.

4. Sometimes, access control mechanisms only allow a
user indirect access to a work. A literary work may be
sealed away in a vault, stored on a medium sealed inside
another, accessed only indirectly via an interpreter,
etc.

Such situations often leave the work's owner/licensor
no clue as to the health of the literary work itself.
It is therefore critical that a user be able to access
a work itself as well as its storage medium in order to
determine its status. This case is meant to compliment
case #3.

5. This case was contained within case #2 as a permissible
reason to bypass an access control for the current period.
But the fact that this was allowed was only made clear
by the Library's comments. When a copyright holder, company,
or other party in charge of maintaining an access control
fails to support users of said access control means, the
access control technically has not malfunctioned, been
damaged, or become obsolete; rather, the access control
provider is just being stubborn.

It is therefore requested that the Librarian of Congress
renew case #2 as before, but also clarify it by adding
this case. Since the final report in response to the previous
comment period covered this contingency, adding this case
(assuming case #2 is renewed) should be a trivial matter.

6. Previously, the Librarian of Congress decided that
this class of works did not qualify for an exemption.
However, the Librarian did admit that this situation will
have to be revisited should the situation change.

Since the time of the previous rulemaking, a number
of factors have occurred that changed the situation. Major
retailers have announced they are discontinuing and/or
decreasing sales of non-region encoded products offerings
in favor of region encoded ones. General sales estimates
have shown sales of some of these to exceed those of the
non-region encoded forms, with the likelihood of the variety
of certain non-region encoded items to be shortly cut
back and/or discontinued.

Region coded works, while providing the copyright holder
with some benefits, also provide the consumer with significant
drawbacks. Only "mass marketable" items tend
to be sold in any given market, restricting those whose
tastes do not match the average person’s. Prior
to the DMCA, those with different tastes from the mainstream
were able to import works from other countries. Region
coding, combined with other existing legislation, prohibits
this in many cases.

An argument was made during the previous comment round
that people wishing to use foreign works that contained
region-code access controls could simply purchase products
capable of playing them. But given these products are
typically sold in foreign markets, they may not meet U.S.
standards for import and/or sale. Products that can handle
works from multiple regions often limit the number of
times they can switch between regions, severely hampering
owners of multi-region collections of works. Furthermore,
the cost to purchase all the necessary support equipment
can be orders of magnitude higher than the cost of importing
the work itself, when there is no difference in storage
formats other than that due to the region access code.

II. "Literary works, including eBooks, which are
protected by technological measures that fail to permit
access, via a 'screen reader' or similar text-to-speech
or text-to-braille device, by an otherwise authorized
person with a visual or print disability."

Summary

I.
Absent evidence that the problems which originally warranted
the exemptions have been corrected by the marketplace,
the exemption issued in 2000 for "literary works,
including computer programs and databases, protected by
access control mechanisms that fail to permit access because
of malfunction, damage, or obsoleteness" and the
exemption for "compilations consisting of lists of
websites blocked by filtering software applications"
should be extended into the three-year period from October
28, 2003 to October 28, 2006.

II. Technological measures designed to control access
to and use of eBooks and other literary works in electronic
media are currently being implemented in a manner which
fails to permit access by individuals with visual or print
disabilities who utilize "screen readers" or
similar text-to-speech or text-to-braille devices as aids
to perception. Fewer than 10% of books published in the
United States are ever made available to such individuals
in accessible formats (such as braille or "talking
books") that are not subject to access controls.
Moreover, the availability of works in such formats is
typically delayed until months after a work is first released
to the general public. For these reasons, and because
circumvention to facilitate access by individuals with
visual or print disabilities is not likely to result in
cognizable harm to the market for or value of copyrighted
works, and exemption should be granted for "Literary
works, including eBooks, which are protected by technological
measures that fail to permit access, via a 'screen reader'
or similar text-to-speech or text-to-braille device, by
an otherwise authorized person with a visual or print
disability."

Sound recordings and audiovisual works (including motion
pictures) embodied in copies and phonorecords, protected
by access control mechanisms which require the use of a
computer operating system, media player, codec or digital
rights management system specified by the copyright holder
in order to gain lawful access.

Summary

The
development of the technology and software industry has
evolved such that the dissemination of copyrighted works
often relies upon delivery systems or software programs
owned or controlled by others. Historically, book publishers
relied upon printers and paper mills, player piano roll
manufacturers relied upon player piano manufacturers,
vinyl record manufacturers relied upon record player manufacturers,
radio and television broadcasters relied upon radio and
television manufacturers, and so on. This paradigm persists
today as the digital dissemination of copyrighted works
relies upon increasingly complex systems, including electronic
hardware (computers, routers, servers, drives, video and
sound cards, monitors, speakers) and computer software
(operating systems, browsers, media players, codecs and
security software).

However, the goals of copyright are not advanced when
copyright holders are permitted to leverage their lawful
copyright monopolies into control over which computer
operating systems, browsers, media players, codecs or
digital rights management systems must be used by those
exercising licensed exclusive rights of reproduction or
public performance or, worse, by those exercising rights
that have never belonged to the copyright holder, such
as the right to perform a work privately.

American jurisprudence is replete with cases condemning
the use of copyright to leverage market power in related
or adjacent markets for other products or services, copyrighted
or not. Although the question whether prosecutors or private
parties may obtain relief from such abusive practices
is not before us, provision of an exemption is a necessary
corollary to respect for the limits upon the copyright
established by Congress and reaffirmed in the courts.
Allowing competition in the development of competing technologies
used in the dissemination or use of copyrighted works
serves, rather than hinders, the public interest in copyright
law. Allowing such competition in no way impairs the exclusive
rights of copyright holders and inherently benefits consumers
and innovation.

Class
#1 (Copy-Protected CDs): Sound recordings released on compact
disc (“CDs”) that are protected by technological
protection measures that malfunction so as to prevent access
on certain playback devices.
Class #2 (DVD Region Coding): Audiovisual works stored on
Digital Versatile Disks (“DVDs”) that are not
available in Region 1 DVD format and access to which is
prevented by technological measures.
Class #3 (Unskippable DVD Advertising): Audiovisual works
released on DVD that contain access control measures that
interfere with the ability to control private performance,
including the ability to skip promotional materials.
Class #4 (Public Domain Film on DVD): Audiovisual works
that are in the public domain in the United States and that
are released solely on DVDs, access to which is prevented
by technological protection measures.

Summary

“Copy-protected”
CDs are intended to prevent the unauthorized reproduction
of sound recordings. Unfortunately, the technological
protection measures involved can malfunction so as to
make the copy-protected CDs unplayable in certain playback
equipment. A consumer should be entitled to take steps
to restore the playability of such a CD. To the extent
this activity may constitute a violation of Section 1201(a)(1),
consumers should be exempted from liability.

DVDs are region coded, so they can only be played on
a DVD player coded to the same region as the DVD. A substantial
and growing number of Americans wish to view foreign DVDs
that are not available in Region 1 versions. An exemption
is required to allow these consumers to modify their DVD
players to view their legitimately obtained foreign DVDs.

Movie studios are able to make certain DVD content “unskippable”
during playback. Some studios have abused this feature
by preventing the skipping of advertising shown prior
to the start of the feature presentation. DVD owners should
be entitled to eliminate these mandatory ads, or, in the
alternative, defeat the “UOP blocking” feature,
and should enjoy an exemption from DMCA liability when
they do so.

Public domain works are increasingly being released or
re-released only on CSS-protected DVDs, which preclude
consumer access to, and use of, these works for a range
of non-infringing purposes. To the extent that the Librarian
considers that public domain works which are stored on
CSS-protected DVDs fall within the prohibition in Section
1201(a), an exemption to circumvent CSS is required for
consumers to access and use these public domain works.

Audiovisual
works as follows: foreign-language audiovisual works not
available for sale in the United States but available for
purchase outside the US on DVDs that are regionally encoded
to prevent playback on DVD players purchased in the United
States.

The exemption requested is to permit circumvention of
the region coding mechanism.

Summary

Audiovisual
works on DVD video discs currently are released with a
"regional locking" mechanism that prevents discs
manufactured in one part of the world from being played
on DVD players or DVD-ROM drives sold in other parts of
the world. This region coding functions as an access control
as per subsection 1201(a)(1)(A). We argue that this access
control causes substantial adverse impact on devotees
and students of foreign cultures or languages since a
significant quantity of foreign audiovisual material is
available for purchase only on DVDs coded for use outside
the United States. Specific markets are discussed and
examples offered. Such individuals are forced to spend
hundreds of dollars on specialized yet essentially redundant
equipment in order to view the material they have purchased.
The remedy proposed is to allow such individuals to circumvent
the region locking mechanism on their DVD playback device
for the purpose of noninfringing viewing of materials
in the exempted class.

The Library's reasons for rejecting such an exemption
in 2000 are reexamined in light of marketplaces changes.

(1)
Audio - including CDs, DVDs, tapes, records, streaming technologies
(such as, but not restricted to "realmedia" or
quicktime), all file formats (such as but not restricted
to mp3s, ogg vorbis, mpeg, divx), and any other storage
device (such as but not restricted to PVRs, PDAs, computer
hard drives, mp3players, solid state storage) and any other
recorded media (analog or digital)

(2) Video - including DVDs, laser disc, CDs, VCR tapes,
streaming technologies (such as, but not restricted to
"realmedia" or quicktime), all file formats
(such as but not restricted to mpeg, divx), and any other
storage device (such as but not restricted to PVRs, PDAs,
computer hard drives, mp3players, solid state storage)
and any other recorded media (analog or digital)

Summary

(1)
This section of the DMCA [17 U.S.C. 1201(a)(1)(A) (1998)]
is written such that it restricts the rights of a person
who legitimately obtained the audio recording and therefore
all classes of media for an audio format should be exempt
if the abuses of this restriction cannot be curtailed.

TITLE 17: CHAPTER 1: Sec. 117(a)(1) of the US Code.
This section properly covers the essential processes of
utilizing programs on computers (complex electronic devices
that arguably anything with microprocessors [most playback
devices and appliances] would have such status).

Why is the DMCA circumventing the law on copyright? Playing
audio involves this exact process of decoding (and copying
the data to a buffer) prior to directing the audio to
its output (usually speakers). The copyright law allows
for this essential need. While it would be better to have
this section of the DMCA repealed, the only other logical
choice is make audio information exempt.

TITLE 17: CHAPTER 1: Sec. 107(4) of the US Code.
The fair use clause allows for reproduction of a work
under certain conditions. Subsection 4 is arguably the
most important as it requires the consideration of the
effect of this copy on the value of the work.

If the work was properly purchased, what possible negative
effect is placed on the work by allowing the purchaser
to play this same recording on the player of his/her choosing
for the sole purpose of his/her private use? The answer
is it has no negative effect... even if the listener has
to copy it from the original recording to the audio playing
device (like an ipod).

I am not arguing that music should be free, that there
shouldn't be copyrights or anything of the like. I am
arguing that the rights of the purchaser are being removed
by my government! If I chose not to buy records from some
draconian and bullying entertainment conglomerate, a small
company could grow and fill the niche of leaving me with
the rights due a legitimate customer. However, this is
no longer possible since I am subject to the DMCA even
if company concerned with my rights and preserving my
freedoms is selling me a recording.

Imagine for a moment that you lose all rights related
to recordings. You have to play it on a specific player.
The player licensed to decode it might be sold only by
the recording vendor or perhaps it is only sold through
one computer software company. It would be illegal to
play the recording on a player or the PC I own, I'd have
to get a different one. THAT is ridiculous. If you think
this isn't going to happen, you are mistaken. This law
is written such that the player can be dictated to the
consumer as it is the only method allowed to decode the
work. Legally the consumer won't be able to use a different
player and manufacturers of alternative players will likely
get sued for circumvention of the "protections"
put in place.

The only way to preserve fair use is to support the exemption
of all media from the DMCA bill which tries to supersede
other, better written, laws like those of copyright law.

(1)
Audio - includes CDs, DVDs, tapes, records, streaming technologies,
all file formats, any other recorded media and any other
storage devices

(2) Video - including DVDs, laser discs, VCR tapes, streaming
technologies, any other recorded media and any other storage
devices

Summary

(1
& 2) "Subsection 1201(a)(1) applies when a person
who is not authorized by the copyright owner to gain access
to a work does so by circumventing a technological measure
put in place by the copyright owner to control access
to the work. See the Report of the House Committee on
Commerce on the Digital Millennium Copyright Act of 1998,
H.R. Rep. No. 105-551, pt. 2, at 36 (1998)"

As worded above, this provision is far too vague and
all-encompassing in scope to allow for fair use by individuals
who have PURCHASED the media listed above. For example,
if I buy a compact disc, it should be within my rights
to make a copy for my cassette player, my .mp3 player,
or any other format for which I own the hardware. Trying
to prevent such use infringes on my property and privacy
rights. The section must be reworked to cover only cases
where actual piracy, the resale of such copies, is attempted.

Jeff
Grove
U.S. Public Policy Committee of the Association for Computing
Machinery

Class

Literary works,
including computer programs and databases, protected by access
control mechanisms that fail to permit access to recognize
shortcomings in security systems, to defend patents and copyrights,
to discover and fix dangerous bugs in code, or to conduct
forms of desired educational activities.

Summary

USACM
has found section 1201(a)(1) to have substantial negative
impacts on the conduct of basic research in the U.S.,
particularly in cryptography and other computer security
areas. The section interferes with many legal, non-infringing
uses of digital computing and prevents scientists and
technologists from circumventing access technologies in
order to recognize shortcomings in security systems, to
defend patents and copyrights, to discover and fix dangerous
bugs in code, or to conduct forms of desired educational
activities. Examples are cited.

Technological
controls applied to Red Book Audio format Compact Discs
preclude licensed (including under a statutory license)
and exempt transmitting organizations from exercising
their otherwise lawful right to make multiple ephemeral
recordings pursuant to section 112(e) of the Copyright
Act, 17 U.S.C. § 112(e). Making such ephemeral recordings
to computer servers is necessary for most Internet webcasting.
As Congress recognized in enacting the section 112(a)
exemption to liability for circumvention for the purpose
of making of a single ephemeral recording, the circumvention
capability requested by DiMA implicates section 1201(a)(1).
An exemption therefore is justified for the narrow purposes
of making permitted multiple ephemeral recordings, so
as to facilitate Internet webcasting.

Factual and legal support for this exemption is set forth
in the attached document.

According
to the way that I have had the DMCA explained to me,
the DMCA would make it illegal to make copies of Digitalized
materials even for private use.
I would like to give an example of copying for personal
use and a few common ways that this private is implemented
that I feel should be protected:
The copying: Making copies of digitalized works for
archival and backup purposes.
Often the medium upon which digitalized products are
shipped is of low quality, regular use of the medium
often leads to deterioration of the medium making
it either unusable or making the use of the product
less enjoyable than was planned. By archiving the
product, the information therein can be used/enjoyed
without the risk of further damage to the original
medium. It is common knowledge the well-cared for
LP's last much longer than music CD's.
Personal use over home-networks: According to the
DMCA it would be illegal to make copies of the protected
works no matter what the intended use. If I want to
enjoy a music file, that is protected, through my
PC, by following the DMCA I would habe to block my
CD-ROM to use the file. If I could archive the files,
I would still have access to all of the functions
that the PC allows, and be able to enjoy the music/film
etc.
I am a US citizen an registered voter currently living
in Germany, this does not relieve me from my responsibility
to voice my concerns when I feel thta the rights of
US citizens are being infringed upon.
Thank you for this forum in which I can raise my voice
and be heard (read).

The
DMCA gives too much power to copyright holders, allowing
them to accuse you and have your internet access cut off,
without a trial or proof. You can also be held liable
for even discussing defeating copy protection, or for
defeating copy protection that would otherwise be legal.
In other industries this isn't tolerated, you cannot be
arrested for owning a set of lockpicks, for breaking into
your own car, or telling someone how a lock works in an
academic text.

BLIND
ALBERT, RAFFI DER SIMONIAH, DANIEL BRADSTREET... Heard
of them? Probably not. They are all (very) local Maine
artists that I have played on my radio shows on our 110-watt
college music station. The artists get little-to-no exposure
beyond our college station's broadcasts. They can potentially
benefit immensely from a wider (internet) audience. Please
consider an exemption for college radio stations. The
artists benefit. The "harm" is the denial of
an expanded exposure for these struggling artists and
the loss (by the potential listeners) who will never get
to hear these artists.

musical works
broadcast by small/amateur internet broadcasters, such as
internet broadcasts of college radio stations

Summary

1.
As a self published, distributed, and promoted musician,
I can personally attest that such outlets are vital in reaching
an audience. The consolidation and dwindling competion of
the broadcasting and publishing industries has made it very
difficult for small artists to gain exposure. Already, a
number of small/amateur broadcast outlets have been forced
to close as a result of the royalty rates set recently.
Some of our friends in the music industry have thereby lost
their only broadcast connection to their audience, and thus
have lost the only significant marketing tool available
to them. Small broadcast outlets must be permitted to thrive
economically for the independent music community to thrive
as well.

One class of
work, motion pictures and other audiovisual works, is being
proposed for exemption.

Digital media commonly used to distribute motion pictures
and other audiovisual works have a finite lifespan. There
is yet no experience that the lifespan of digital media
equals or exceeds the lifespan of familiar analog media
used for analog motion pictures and other audiovisual
works.

"Refreshing" digitally recorded motion pictures
and other audiovisual works on to new digital media is
therefore necessary for the comsumer. Without such "refresh"
capability any right to use digital musical recordings
amounts to a limited time or finite use agreement.

"Refreshing" digital media that contains motion
pictures and other audiovisual works should be made permissible
for anyone who purchases a legal copy of a digital motion
picture and other audiovisual work. Until manfacturers
of digital motion pictures and other audiovisual works
provide a reasonable and inexpensive way to "refresh"
digital media, the transfer of motion pictures and other
audiovisual works from one digital medium to another (of
the same of differnt kind) must be allowed without penalty.

Digital media commonly used to distribute sound recordings
have a finite lifespan. There is yet no experience that
the lifespan of digital media equals or exceeds the lifespan
of familiar analog media used for analog sound recordings.

"Refreshing" digitally recorded sound recordings
on to new digital media is therefore necessary for the
comsumer. Without such "refresh" capability
any right to use digital musical recordings amounts to
a limited time or finite use agreement.

"Refreshing" digital media that contains sound
recordings should be made permissible for anyone who purchases
a legal copy of a digital motion picture and other audiovisual
work. Until manfacturers of digital sound recordings provide
a reasonable and inexpensive way to "refresh"
digital media, the transfer of sound recordings from one
digital medium to another (of the same of differnt kind)
must be allowed without penalty.

Digital media commonly used to distribute musical works
have a finite lifespan. There is yet no experience that
the lifespan of digital media equals or exceeds the lifespan
of familiar analog media used for analog musical works.

"Refreshing" digitally recorded musical works
on to new digital media is therefore necessary for the
comsumer. Without such "refresh" capability
any right to use digital musical recordings amounts to
a limited time or finite use agreement.

"Refreshing" digital media that contains musical
works should be made permissible for anyone who purchases
a legal copy of a digital motion picture and other audiovisual
work. Until manfacturers of digital musical works provide
a reasonable and inexpensive way to "refresh"
digital media, the transfer of musical works from one
digital medium to another (of the same of differnt kind)
must be allowed without penalty.

All photograhic,
video, and audio digital content that is, or purports to be,
record of fact. (E.g. news footage.)

Summary

Video/Audio
Enhancement

The ability to apply enhancement techniques to photos/video/audio
for forensic or analytical purposes
is an essential public right, requires direct access to
the cleanest form of the data, and is compromised by any
restriction of its application to degraded forms of data
such as analog conversions.